What was Tenancy Tribunal case 4782516 about?

The tribunal order states: The landlord’s application for rehearing is dismissed.

How much money was awarded in case 4782516?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4782516?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4782516?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10338804-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4782516 about?

The tribunal order states: The landlord’s application for rehearing is dismissed.

How much money was awarded in case 4782516?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4782516?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4782516?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10338804-Tribunal_Order_Redacted.pdf.

18G Forth Street, North Dunedin, Dunedin 9016 Tenancy Tribunal Case 4782516 — Rent arrears

Order

The landlord’s application for rehearing is dismissed.

Reasons

Both parties attended the hearing on 10 May 2024 to consider the rehearing application filed by the landlord.
On 19 February 2024, I dismissed the landlord’s claim for rent arrears and directed the Bond Centre is to pay the bond of $2,664.00 to the tenant. Grounds advanced in support of a rehearing
The landlord has applied for a rehearing of my determination on these grounds: a. There were glaring errors that go against basic contract law principles. b. I have shown bias and/or a lack of understanding by ignoring and altering the facts of the case. c. The decision is so egregious, that no other adjudicator or judge would agree with it. d. The landlord posed the following questions about the implications of the decision: i. Where have the 5 elements required to constitute a legally binding agreement in New Zealand been demonstrated in this case? ii. The tenants ask us if we would consider buying their furniture off them and we say yes. If the tenant’s then decide to keep the furniture, would they still be obligated to sell that furniture to us? iii. An employee says that they are considering taking a holiday in June, the employer then makes arrangements to cover them over that time. Before the employee books their holiday, their circumstances change and they can no longer go at that time. They have not made a formal request for annual leave but they have indicated that they may go on holiday in June. Does that employee have to take leave at that time? iv. Throughout the decision, Mr Tam uses the word ‘assume’ and he also says that ‘material communications from the landlord to the tenants were ambiguous and equivocal.’ If communication is not clear, then how can there be an agreement when both parties are unaware of the terms? v. Why is it that the tenants have a right to assume that the tenancy agreement will end early when terms have not been discussed but the property manager is not able to assume that the tenancy agreement will continue as it was originally written? The tenants were not even in agreement about the lease ending early and the only work planned for December was half a day to install carpet in lounge and hallway. vi. If the tenants are on a joint and severally liable lease, then how can the end date on the tenancy be altered without the unanimous written consent of all parties? What if one of the tenants wanted to stay until the 30th of December but extensive renovations had been planned?
The landlord states that paragraphs 25 – 27 of my decision illustrate a clear bias when I said I was not impressed that carpet was installed in the hallway and living area after the tenants had handed back keys and final inspection was completed. He described this work which took half a day as a ‘substantial renovation’ and said that we ‘clearly seized the opportunity’ to do this work while the property was vacant. The landlord submits that “the facts of the case have been altered to suit the adjudicators and the tenant’s narrative.”
The landlord posed further questions to me in support of the application for rehearing: a. If it is clear that we took advantage of the fact that the tenants were moving early and ‘seized the opportunity’ to carry out planned work, can you please cite the evidence that was provided that made this so clear to you? b. Other than the installation of carpet and some touch up cleaning, what other work did we carry out in December? c. You were not impressed by our actions so is it your expectation that landlords contact tenants to get permission to do maintenance work or cleaning at a flat after the keys have been handed in and the final inspection has been completed? Can you please cite the law that says this is a legal requirement for landlords to give notice to tenants that are no longer occupants at a property or are you just showing your bias in this case? d. Is half a day laying carpet in a hallway and living area a substantial renovation that would require tenants to move out? If so, this sets a very dangerous precedent and makes it very easy for landlords to remove tenants.
The landlord submits that in my application of section 85 Residential Tenancies Act 1976 (‘RTA’) to the case, I have ignored the part of that section which says that adjudicators are bound by general principles of the law, for instance, ‘offer and acceptance’ or the 5 elements that make up a legally binding agreement. The landlord says that in my attempt to distance my decision from strict legal rights, obligations and technicalities that would not enable me to rule in the tenant’s favour, I had to find a technicality, using sections 21-24 of the Contractual Mistakes under the Contracts and Commercial Law Act 2017 (‘CCLA’) and very loosely try and make the word ‘mistake’ apply in this case so I could make my decision in the tenant’s favour.
The landlord concluded that there has been a serious miscarriage of justice here and this case needs to be looked over by an adjudicator that will rule on the facts of the case rather than a tenant advocate that will take liberty with the facts and the law to suit their narrative.
At the hearing to consider the rehearing application, the landlord stressed that the parties’ email exchanges at the material times clearly show that there is no mutual understanding for the lease to be brought forward; the property manager was not in mutual understanding with the tenant on the lease ending early and there was no agreement between the parties to that effect at any time.
The landlord submits that joint and several tenancies cannot be varied without mutual consent of the parties and the terms of the tenancy agreement/contract “must mean something.”
The landlord cannot understand how assumptions can be made and says that tenants should not be entitled to assume that the lease ended early.
On the point of the landlord having taken back possession and renovated the premises, the landlord says that half day’s work on carpeting was minimal disruption and in no way such recarpeting of the lounge can be seen as substantial renovation.
The landlord also says that the landlord’s emails have been taken out of context. Legal principles on determination of an application for rehearing
Section 105(1) Residential Tenancies Act 1986 provides that the Tribunal has the power to order a rehearing where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
Usually the party applying for the rehearing must show that something went wrong with the Tribunal’s procedure, for example, that they did not receive notice of the hearing or they were not able to properly present their case. A rehearing may also be granted where there is new evidence that was not reasonably available at the first hearing, if it could have affected the outcome.
The District Court has held that if the Tribunal was simply wrong in its findings of fact, or its application of the law, this is not sufficient to establish a miscarriage of justice: a rehearing is not an alternative to an appeal. Furthermore, a rehearing will not be granted just because a party is unhappy with the decision, or to give them a second opportunity to present their case.
In Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy considered the provision “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur” to be strong words which set a high standard and most obviously apply to cases of procedural error or discovery of new evidence.
Those words however cannot cover a complaint that Tenancy Tribunal was merely mistaken or wrong in its findings of fact or application of law. Where the grounds relied on in application for rehearing are complaints about legal correctness of decision they should have been dealt with by way of appeal. No distinction can be made between errors of law that are grave enough to constitute a substantial miscarriage of justice and those which are not.

Has a substantial wrong or miscarriage of justice occurred?

The landlord failed to establish the grounds for a rehearing.
There are no new evidence nor materials adduced which might affect the outcome of the previous hearing and order of the Tribunal dated 19 February 2024.
The landlord is clearly unhappy with the decision, and the purported implications of the decision, but this by itself is insufficient for the grant of a rehearing.
The further emails provided by the landlord do not affect my determination that the landlord and the property manager in particular were under an obligation to let the tenants know that while they can vacate earlier (on 20 November 2023), the landlord always intended to keep to the expiry date of the fixed term tenancy and hold them to rent payments until 30 December 2023.
Those emails remain ambiguous and equivocal in that while the landlord was well aware of the early date on which the tenants will be vacating, the landlord had not made it clear to the tenants that while they may vacate earlier, their obligation to pay rent until the original end date of the fixed term is still expected of them.
I had found that the landlord, including landlords of student accommodations such as this, ought to make it clear to their tenants that the end date of the lease does not coincide with the date the tenants actually vacate and in the absence of those clear expectations and understanding (that the end date of the lease does not coincide with the date the tenants vacating), I found that the tenants are entitled to assume that their fixed term tenancy would be ending on the date that they will be vacating, which date the landlord had clearly been aware of weeks earlier.
I considered the material issue is whether the landlord has agreed, whether expressly or by implication, that the fixed term tenancy would terminate on 20 November 2023.
At the onset, I accepted the property manager’s evidence that there had been no “mutual understanding” with the tenants (as alleged by the tenants) that the end date of the lease coincided with the date of the tenants vacating. However, I also found that the landlord has agreed, whether expressly or by implication, that the fixed term tenancy would terminate on 20 November 2023.
The landlord’s questions to the Tribunal about the implication of the decision, submissions about glaring errors that go against basic contract law principles, bias, emails being taken out of context and lack of understanding by ignoring and altering the facts of the case, a decision so egregious that no other adjudicator or judge would agree with it, misapplication of section 85 RTA and CCLA to the case, and the adjudicator having taken liberty with the facts and the law to suit the tenant’s narrative are really complaints about correctness of the decision which should be dealt with by way of appeal.
There is ultimately nothing before me which affects the outcome of the substantive order dismissing the landlord’s claim for rent arrears.
Following Judge Tuohy’s ruling in McMillan, complaints about legal correctness of a decision should be dealt with by way of appeal rather than an application for rehearing and no distinction can be made between errors of law that are grave enough to constitute a substantial miscarriage of justice and those which are not.
Ultimately, all the material points raised by the landlord in the initial hearing and the present application for rehearing have been duly canvassed, and determined, albeit there were against the landlord in the proceedings.
There remains nothing before the Tribunal that could have affected the outcome of the previous hearing.
For those reasons, the rehearing application must fail.
As the tenants have been largely successful in this claim, and in this application for a rehearing, I direct the continued suppression of their names and identifying details.

Tenancy Tribunal case 4782516 — Rent arrears at 18G Forth Street, North Dunedin, Dunedin 9016

At a glance

Tenancy Tribunal case 4782516 — Rent arrears at 18G Forth Street, North Dunedin, Dunedin 9016

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions